Jonathan Van Blerk v The Attorney General and Ors (SCZ NO. SCZ/07/27/2024) (2 October 2025) – ZambiaLII

THE SUPREME COURT FOR ZA A--...-::-~~ SCZ NO. SCZ/07/27/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) JUOtCIARv BETWEEN: 0 2 OCT 2025 JONATHAN VAN BLERK eourr APPLICANT AND THE ATTORNEY GENERAL 1 ST RESPONDENT LUSAKA CITY COUNCIL 2ND RESPONDENT KWIKBUILD CONSTRUCTION LIMITED 3RD RESPONDENT BANTU CAPITAL CORPORATION LIMITED 4TH RESPONDENT NATIONAL PENSION SCHEME AUTHORITY 5TH RESPONDENT BEFORE HON. JUSTICE NIGEL K. MUTUNA ON 2ND OCTOBER, 2025 For the Applicant : Mr. S. Mbewe and Mr. B. Mweemba of Messrs Keith Mweemba Advocates and Mr. J. Tembo of Messrs Lynus and Advocates For the 1st Respondent: Ms. N. Chongo - Attorney General's Chambers For the 2nd Respondent: N/A For the 3rd Respondent: Mr. S. P. Chilembo and Mr. N. Chibeleka of Messrs RASO Chambers and Mr. Z. Sampa and Mr. W. Kayope of Messrs Simeza Sangwa and Associates For the 4th Respondent: Mr. B. Mutale, SC, Ms. N. Mukuka and Mr. T. Kasweshi of Messrs Ellis and Company and Mr. S. Sikota, SC and Mr. K. Khanda of Messrs Cental Chambers For the 5th Respondent: Mr. H. Zulu of Messrs ECB Legal Practitioners RULING Cases Referred to: 1. Glancre Teoranta van Bord Pleanala [2006} IEHC 2~0 2. The Queen (on the application of} Compton v Wiltshire Primary Care Trust [2008} E"WCA Civ 749 3. Hermanus Phillipus Steyn v Giovanni GnecchiRuscone [2012} KECA 259 (KLR) 4. Juldan Motors Limited and Another v Nasser Ibrahim and Another 2015/H P/ 0678 5. Savenda Management Services Limited v Stanbic Bank (z) Limited, Selected Judgment 10 of 2018 6. Muyawa Liuwa v Judicial Complaints Authority and Attorney General (2011) ZR 7. Bidvest Foods Zambia Limited and Others v CAA Import and Export Limited Appeal 56 of2017 8. Jireys Nestory Mutalemwa v Ngorongoro Conversation Area Authority Civil Application No.154 of2 016 9. Astro Holdings Limited and Others v Edgar Hamuwele (Sued as Receiver of Courtyard Hotel Limited in Receivership) and Others, Application No. 75/ 2024 1 0. Development Bank of Zambia Limited and Another v Jet Cheer Development Company (Zambia) Limited, SCZ Ruling 1 of2 001 Statute referred to: 1. Court of Appeal Act No. 7 of 2016. 2. Rules of the Supreme Court of England, 1965 (1 999 Edition) White book Works referred to: 1. Bryan A. Gamer. (2004) Black's Law Dictionary, 8th edition, Thompsom West 2. Harry Woolf and Jeffrey Jowell, de Smith's Judicial Review ofA dministrative Action ~ R2 ~ Introduction 1) This is the applicant's motion for permission to appeal against the judgment of the Court of Appeal dated 30th July, 2024. It is made by way of motion pursuant to Rule 48(1) of the Supreme Court Rules as read with section 13 of the Court of Appeal Act. 2) The motion has had a checkered past. It was initially before my sister Kaoma, JS who, by order dated 11th November, 2024 adjourned it to the full court for hearing pursuant to the power vested in her by Rule 48(3) of the Supreme Court Rules. 3) The matter then came up before the full Court on 6th May, 2025 and it was referred back to a Single Judge and subsequently allocated to me. Background 4) The history of this matter is very long. In so far as it relates to the motion before me, the grievance by the applicant is due to the fact that a portion of his farm, 4300 Lusaka was re-entered by the State. When he challenged the re-entry, by suing the State, ~ ~ R3 one of the witnesses called by the Attorney General testified that the land was acquired in the public interest. 5) The contention by the State was that the Lusaka City Council was to establish a housing estate after the property was re entered. However, a portion of the land was subsequently allocated to the 2nd and 4th respondents. These two later subdivided their portions and sold them to the 5th respondent. The motion, evidence and arguments by counsel 6) The evidence in support of the motion was led by the applicant. The portions of the evidence as they are relevant to this application reveal that the intended grounds of appeal raise strong points of law of a unique nature and have high reasonable likelihood of success. He went on to testify that the intended appeal raises matters of public policy and interest which ought to be determined with finality. The matters, the deponent stated further, raise novel issues. 7) The arguments in support of the motion began by establishing my jurisdiction as regards motions of this nature. I have not ~ R4 ~ summerised the arguments in this regard because the fact that I have jurisdiction to entertain this application is not in dispute. Counsel advanced their argument to the first ground of point of law of public importance. They began by defining the phrase ''public importance" by reference to Black's Law Dictionary by Bryan A. Garner, de Smiths, Woolf and Jowell, Judicial Review of Administrative Action and the cases of Glancre Teoranta van Bord Pleanala1 The Queen on the application , of Compton v Wiltshire Primary Care Trust2 and Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone3. 8) Counsel argued that the principles set out in the Glancre1 and Hermanus2 cases were applied by a Single Judge of the Supreme Court in the case of Juldan Motors Limited and Another v Nasser Ibrahim and Anothet4. The Judge in this case held that for permission to appeal to be granted based on the ground of point of law of public importance, an applicant must show that the intended appeal raises issues which transcend the circumstances of a particular case and will affect other cases. ~RS~ 9) In regard to the second ground advanced of reasonable prospects of success, counsel argued that due to the conflicting statements of the law made in the judgment sought to be assailed, this ground had also been surmounted. Lastly, on the ground of compelling reason for the appeal to be heard, counsel submitted that this arose from the novelty of the issue raised in the intended appeal. 10) The 1st respondent opposed the motion by way of an affidavit and skeleton argument. The evidence in the affidavit was led by the Learned Solicitor General, Mr. M. Muchende, SC. He testified that there are no outstanding issues to be resolved in this matter following the decision of the Court of Appeal. Further, the application does not meet the threshold to warrant the grant of permission to appeal. 11) The witness went on to state that the matter had been litigated and relitigated in both the High Court and Supreme Court over the same issue, as such, the 1st respondent will be prejudiced if permission to appeal is granted and it is exposed to further litigation. ~ R6 ~ 12) In the arguments opposing the motion, the 1st respondent submitted that there is no point of law of public importance in the intended appeal as rightly observed by the Court of Appeal. It was argued that the issue determined by the Court of Appeal was whether the judgments under cause numbers 1997 /HP/272 and SCZ/8/ 190/2002 were obtained by fraud. There can be no point of law of public importance that can arise out of such a determination. 13) It was submitted further that if permission to appeal is granted, it will merely prejudice the 1st respondent given the number of times this matter has been litigated upon. In addition, this court should not allow its over stretched resources to be depleted by busy bodies and should only open its doors to litigants who satisfy the threshold under section 13 of the Court of Appeal Act. My attention was drawn to the case of Savenda Management Services Limited v Stanbic Bank (z) Limited5 . 14) Counsel also referred to the Supreme Court decision in the case of Muyawa Liuwa v Judicial Complaints Authority and ~ R7 ~ Attorney General6 in which the court restated the need for there to be finality in litigation. I was urged to dismiss the motion. 15) In opening the arguments in opposition, counsel for the 3rd respondent set out the new role of the Supreme Court with the creation of the Court of Appeal. Here, counsel emphasized the fact that appeals to the Supreme Court are no longer automatic and only deserving matters should be allowed to proceed on appeal to the.Supreme Court. To emphasize their point, counsel referred to a passage in the decision of the Supreme Court to that effect in the case of Bidvest Foods Zambia Limited and Others v CAA Import and Export Limitecl1. 16) Advancing their arguments, counsel dealt with the first ground advanced by the applicant of point of law of public importance. They submitted that a review of the documents filed by the applicant reveals that he seeks permission to appeal on the misconception that the intended appeal will address the President's exercise of the power of eminent domain. To the contrary, counsel submitted, the dispute in the intended appeal is primarily on the issue whether the judgments of the High Court ~RS~ and the Supreme Court under cause numbers 1999/HP/272 and SCZ/ 8 / 190 / 2002, respectively, were procured by fraud or fraudulent misrepresentation. 17) Counsel argued that this is evident from a perusal of all the grounds of appeal. Therefore, the intended appeal is misconceived as the dispute it seeks to be adjudicated was not the cause of action in the court below. As such, permission to appeal should not be granted. 18) As regards the second ground of reasonable prospects of success, counsel reminded me that at this stage I am not called upon to determine the merits of the intended appeal. My role, according to counsel, is to determine the arguability of the grounds of appeal. They referred to a passage in a judgment of the Tanzanian Court of Appeal in the case of Jireys Nestory Mutalemwa v Ngorongoro Construction Area Authority8 as follows: "The duty of the court at this stage is to confine itself to the determination of whether the proposed grounds raise an arguable issue(s} before the court in the event leave is granted. It is for this reason the court brushed away the requirement, to show that the appeal stands better chances ~ R9 ~ of success as a factor to be considered for the grant of leave to appeal. It is logical that holding so at this stage amounts to prejudging the merit of the appeal." Counsel argued further that the test of point of law of public importance having failed, the test of reasonable prospects of success must fail for the same reason. 19) As regards the last ground of compelling reason for the intended appeal to be heard, counsel argued that there was no such compelling reason and the applicant has not advanced any such reason. They submitted that according to the decision in the case of Astra Holdings Limited and Others v Edgar Hamuwele (Sued as Receiver of Courtyard Hotel Limited in Receivership) and Others9 it is not sufficient for an applicant , to merely allege that a certain ground meets one, two or all the criteria for granting permission to appeal without explaining how the same comes about. 20) Next, counsel argued that the applicant's fate is compounded by the fact that there is no novelty in the issues he wishes the Supreme Court to determine on appeal. According to counsel, the Supreme Court has already pronounced itself on the law ~ RlO ~ regarding an action to set aside a judgment procured by fraud which is in line with the decision of the Court of Appeal sought to be assailed in the case of Development Bank of Zambia Limited and Another v Jet Cheer Development Company (Zambia) Limited10. I was urged to dismiss the motion. 21) The 4th respondent's opposing evidence was led by Mr. Bonaventure Chibamba Mutale, SC. In so far as the evidence was relevant to this application, it revealed that none of the applicant's grounds of appeal challenge the findings by the High Court on fraud and that the applicant had not specified the point or points of law of public importance raised by the grounds of appeal. Further, there is no indication in the motion that the intended appeal raises a novel question of law. 22) The witness concluded by arguing that the applicant has not demonstrated that the intended appeal has prospects of success and that he merely seeks to revisit the same issues adjudicated upon by this Court, the Court of Appeal and High Court. ~ Rll ~ 23) In the arguments in opposition, counsel explained the holding in the Astra Holdings Limited9 case emphasizing on the need for novel issues and a clear elaboration of how the grounds of appeal raise points of law of public importance. They contended that the applicant has lamentably failed to demonstrate that the intended appeal satisfies the provisions of section 13(3) of the Court of Appeal Act . . According to counsel, the applicant has not indicated the points of law of public importance which arise from the judgment of the Court of Appeal sought to be assail. 24) Advancing their arguments, counsel submitted that the issues sought to be canvassed in the intended appeal on setting aside of fraudulent judgments and the President's power of eminent domain have all been adjudicated upon by the Supreme Court and the law settled. 25) On the ground of reasonable prospects of success, counsel argued that once again, the applicant had made no attempt at demonstrating that the intended appeal has any prospects of success. They went to great length at explaining how courts in Zambia have frowned upon endless litigation and litigation for ~ R12 ~ the sake of litigating only. I have not summerised this portion of the arguments for reasons that are apparent later in this ruling. I was urged to dismiss the motion. 26) The evidence opposing the motion by the 5th respondent was led by Mr. Chola Shapi Mutambo. The witness's evidence in so far as it was relevant to this motion, revealed that a perusal of the grounds of the intended appeal do not disclose any matters of public policy and interest and neither is there reasonable likelihood of the applicant succeeding on appeal. Further, there is no novelty in the issues that would be raised in the intended appeal. 27) As for the arguments opposing the motion by counsel for the 5th respondent, these mirrored those of their counterparts. For this reason, I have not reproduced them but have considered them in my determination of this motion. 28) The affidavit evidence and arguments in reply by the applicant, in so far as they were relevant to the determination of this motion, restated the earlier evidence and arguments. ~ R13 ~ Consideration and decision 29) In my determination of this motion, I have considered the evidence and arguments deployed before me by the parties. In opposing the motion, the respondents who have opposed it, have presented evidence and legal arguments attacking the grounds of appeal which the applicant has canvassed in support of the motion. They have stated that the grounds do not surmount the test set by section 13(3) of the Court of Appeal Act. 30) I am of the firm view that this approach does not align with the Bidvest7 test which stated that in considering the threshold issue, the court should not only look at the grounds of appeal but the character of the appeal as a whole. The Bidvest7 test aligns with the provision of section 13(3) of the Court of Appeal Act which states in part that: "The Court may grant leave to appeal where it considers that (a) THE APPEAL raises points of law of public importance, ... (c) THE APPEAL would have a reasonable prospect of success; or ~ ~ R14 (d} There is some other compelling reason for THE APPEAL to be heard ... " I have deliberately put the relevant parties of the section in capital letters and explain them in the paragraph which follows. 31) What is apparent from the portions of section 13 of the Court of Appeal Act which I have reproduced is that a court should, in determining whether or not to grant permission to appeal, focus more on the character of the appeal as a whole and not limit itself to examining the grounds of the intended appeal. For this reason, I shall in my determination of this motion look, not only at the grounds of the intended appeal, but also the character as a whole of the intended appeal. 32) Let me also add at this juncture that in my consideration of the threshold issue, I must do so in light of the dispute which was deployed before the High Court and Court of Appeal. Counsel for the 3rd respondent argued that the dispute did not involve the exercise of the President's power of eminent domain but rather whether the High Court and Supreme Court judgments under ~ R15 ~ cause numbers 1997 /HP/272 and SCZ/8/190/2002, respectively were procured by fraud. 33) While I agree with the position taken by counsel for the 3rd respondent, I do not agree that the grounds of the intended appeal do not capture the issue as they define it, that is to say, were the judgments referred to procured by fraud. The grounds of appeal specifically grounds 1, 2, 3 and 4, all question the interpretation given by the Court of Appeal on the effect of the evidence tendered by one Fortune Kachamba in the trial court. Grounds 5 and 6 expand on this. 34) The interpretation I have given to the challenge to the evidence by Fortune Kachamba is that it defines the subject matter of the intended appeal. Therefore, the question is, what is the question posed by the intended appeal and grounds from which I should determine the threshold issue. 35) While the applicant may not have directly said so, a scrutiny of the paper work presented by him which reveals the character of the appeal, leads me to conclude that the question he wishes to ~ R16 ~ pose in the intended appeal is, whether, in the exercise of power of eminent domain, the President can re-enter a property for one purpose and utilise it for a totally different purpose. Put differently, can the President re-enter land for purposes of utilising it for the benefit of the members of the public, but later allocate it to private entities for their private use. Counsel for the applicant confirmed this when I raised a querry during the hearing of the preliminary objection raised by the 4th respondent. 36) It is with this question in mind that the applicant attacks two judgments based on the evidence which Fortune Kachamba tendered. 37) Having defined the question, I now consider the threshold issue. I have no hesitation in holding that the question posed meets the three tests set in section 13(3) of the Court of Appeal Act. There is no doubt that the question will raise a point of law of public importance given the fact that the answer to the question will affect not only the parties before this Court but others as well. There is also novelty in the issue. I have threshed through the undergrowth of the decisions of the Supreme Court, Court of ~ R17 ~ Appeal and High Court and have not found a decision which addresses the question. 38) As for reasonable prospects of success, my task is not at this point to delve into the merits and demerits of the intended appeal. Mine is to make a cursory preview of the intended appeal and judge, on a prima facie basis, if there are any prospects of success. The conclusion I have reached is that there appears to be, primafacie, prospects of success in the appeal. 39) Last on compelling reason for the intended appeal to be heard, not only will the appeal be breaking new ground in our law, but it has a huge impact on the public at large, bearing in mind the importance of the subject matter of the dispute and frequency with which it arises. Conclusion 40) Arising from what I have said in the preceding paragraphs, I must come to the inescapable conclusion that there is merit in the motion and I accordingly grant it as prayed. Permission to appeal ~ R18 ~ to the Supreme Court is granted to the applicant. He shall also have his costs. Dated at Lusaka this 2nd day of October 2025 . K. a Ju he upreme Court ~ Rl9 ~